LEONOVICH v. BARNHART

The opinion of the court was delivered by: Charles J. Siragusa, District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to
review the final determination of the Commissioner of Social Security
("Commissioner") who denied her application for disability benefits.
Before the Court is the Commissioner's motion (docket #3) seeking an
order reversing her decision and remanding the case, pursuant to sentence
four of § 405(g), for further hearings, and plaintiff's motion
(docket #5) for summary judgment, seeking a reversal of the
Commissioner's decision and a remand for calculation of benefits only.
For the reasons stated below, the Court grants plaintiff's motion and
remands the case pursuant to sentence four of § 405(g) for
calculation of benefits only.

II. PROCEDURAL BACKGROUND

Plaintiff filed an application for disability insurance benefits on
October 21, 1997, alleging she was disabled as of November 19, 1996, as a
result of problems with her hands. The Commissioner denied her
application initially and on reconsideration. Plaintiff then filed a
request for a hearing before an Administrative Law Judge ("ALJ") and the
hearing was held on October 9, 1998. The ALJ issued a written decision on
May 24, 1999, finding that plaintiff was not disabled, and that she
retained the residual functional capacity to perform sedentary work. The
ALJ's decision became the Commissioner's final decision when the Appeals
Council denied Plaintiff's request for review on March 8, 2002. Plaintiff
commenced this civil action on April 22, 2002.

III. PLAINTIFF'S WORK HISTORY

Plaintiff was born on August 23, 1961. She is a high school graduate
who also earned a teaching assistant certificate from Corning Community
College. From 1979 to 1984, plaintiff worked as a sales clerk and
bookkeeper at a Sears Catalogue Store. She then from September, 1981*fn1
to November 18, 1996, worked as a teaching assistant, first at Bradford
Central School, then at Bath Central School.

On February 8, 1996, Dr. Phillips diagnosed wrist pain and, for a
treatment plan, wrote," cock up splints . . . Advil . . . x-ray tonight."
R. at 22. Plaintiff continued to see Dr. Phillips every two to four weeks
and, on July 9, 1996, plaintiff underwent an electromyogram ("EMG") of
her hands at Dr. Phillips' direction. The examining neurologist, Dr. Paul
Buckthal, wrote that plaintiff appeared to be suffering from either de
Quervain's Syndrome*fn2, or disruption of the carpal metacarpal joint
capsule. R. at 263-64.

On July 25, 1996, plaintiff was evaluated at the Hand Management Center
of St. Joseph's Hospital in Elmira, New York, by Jill Townsend, PT, CHT.
Ms. Townsend wrote in her assessment that plaintiff's problems included
significant pain, swelling and diminished range of motion of the right
thumb resulting in decreased ability to incorporate that hand into
functional activities of daily living. She instructed plaintiff on the
use of heat and cold, and fitted her with a spica*fn3 splint with the
goal of resting the joints and tendons, thereby reducing pain and
edema*fn4. Plaintiff then began a course of physical therapy and
experienced some improvements. R. 158-59. As of September 9, 1996, Ms.
Townsend noted that plaintiff had returned to work and that she was
managing, although she noted some increase in plaintiff's symptoms. R. at
161. Plaintiff was fitted with another spica splint in October 1996, with
the result that her pain decreased and mobility increased. R. at 163.

On November 19, 1996, plaintiff left work due to pain in her left
elbow. Plaintiff continued physical therapy and after fifteen physical
therapy visits, Kimi Archer, MSPT*fn5 at Ira Davenport Memorial Hospital
in Bath, New York, concluded in a report dated March 6, 1997, that
plaintiff, "had not received any significant improvement in her hand
function and did have continued reports of pain specifically after being
seen by three doctors prior to her last apt. [sic.]" R. at 166.

As a result of being right-handed,, plaintiff had relied on her left
arm more when her right arm became sore, resulting in injury to her left
elbow. R. at 43. As a result of her left elbow injury, plaintiff
increased the use of her right arm, which led to increased pain in her
right thumb and wrist. R. at 164. In his examination notes of November
18, 1996, Dr. Phillips wrote that plaintiff was totally disabled. R. at
236.

In December 1996, plaintiff began another course of physical therapy at
Ira Davenport Memorial Hospital. She attended a few appointments, but
experienced continued pain. R. at 166. She saw Dr. Steven Garner, an
orthopedic surgeon, on January 30, 1997. Dr. Garner found a
positive Finkelstein*fn6 test on the right, with some discomfort of the thenar
eminence, ulnar area and MP joint. He reported that plaintiff's left
wrist was tender, had a positive Tinel's sign*fn7 and had decreased
sensation along the ulnar nerve distribution. Dr. Garner thought
plaintiff might have de Guervain's [sic]*fn8 and ulnar neuropathy of the
left hand. He wrote in a January 30, 1997, letter to Dr. Phillips that,
"the hope for a resolution may be somewhat grim." R. at 178.

In connection with her workers' compensation claim, Dr. John S. Forrest
evaluated plaintiff on January 29, 1997. R. at 154. She complained of
bitter pain in her right hand and at the base of her thumb, with
shakiness of the hands. He noted that her left hand had tingling on the
outer fingers which sometimes radiated up to her elbow. Plaintiff told
Dr. Forrest that she could not wash, do her dishes, clean, or lift, and
that she spent her time sitting and reading. R. at 155.

Dr. Forrest reviewed x-rays taken in February and December 1996 and
noted that plaintiff appeared in considerable pain, crying with ordinary
hand movements. He observed swelling and tenderness of the right
carpometacarpal joint of her thumb, and positive Tinel's and Phalen's*fn9
signs by her right elbow. He noted the following: her hand grip was
reduced bilaterally, with only seven pounds on the right, and fifteen
pounds on the left; and her side pinch grip was also reduced, at two
pounds on the right and four pounds on the left. On her left wrist and
elbow, he remarked there was a positive Tinel's sign, but a negative
Phalen's sign. Dr. Forrest diagnosed plaintiff as having a probable
marked sprain of the MP and CMP (carpometacarpal) joints. He also wrote
that there was ulnar nerve neuritis of her left elbow and wrist, possibly
due to overuse. R. at 154-57. Dr. Forrest considered plaintiff to have a
"marked temporary partial" disability. R. at 157.

On March 11, 1997, plaintiff was again evaluated by Ms. Townsend at
St. Joseph's Hospital. R. at 167-69. Although, Ms. Townsend observed that
plaintiff's right thumb was not swollen, she did make a number of abnormal
findings. She found the range of motion of plaintiff's right thumb was
only 60% of that of the left thumb, and that plaintiff's right hand grip
and pinch strength were only 30% to 50% of her left hand. Ms. Townsend
also found palpable tenderness of some of the hand joints, and that the
Phalen s sign (used to test for carpal tunnel syndrome) was positive
bilaterally, as was the Tinel's test over the ulnar nerve at plaintiff's
wrist and elbow. R. at 167-69.

[s]he is disabled from her regular job. The temporary
restrictions have to do with power grasp and lifting,
carrying, pushing or pulling more than five pounds.
There will almost certainly be permanent restrictions
and the restrictions will almost certainly be severe.

R. at 172.

Pursuant to Dr. Striff's suggestion, plaintiff was seen by Dr. Kenneth
Gold, a rheumatologist, on May 28, 1997. R. at 173-76. Plaintiff told
Dr. Gold that she was no longer able to do her housework. She complained
of numbness and tingling in her fourth and fifth fingers. Dr. Gold found
that her right thumb was tender even to light touch. Dr. Gold also found
that plaintiff's grip strength was markedly decreased on the right side,
and that she experienced mild discomfort during movement of her wrists.
However, Dr. Gold, disagreed with Dr. Striff, and ruled out nerve
entrapment and fibromyalgia. He diagnosed plaintiff as suffering from
myofascial pain disorder. Dr. Gold wrote in his May 28, 1997 report
that,

[p]rognosis at this point is quite poor as symptoms
have been present 15 months. She has been off work now
for six months without any significant improvement . . .
Prognosis of this is quite poor. I think that the
likelihood of her benefitting from vocational rehab is
quite limited given the fact that both upper
extremities are inoperable and she would be unable to
do any type of sedentary or manual labor with her
current problem. . . .

R. at 175-76.

Subsequently, in a June 9, 1997, letter, Dr. Gold wrote that although
he had permitted plaintiff to return to work, that decision was based on
false information. He stated that because he was told by the Workers'
Compensation carrier that plaintiff was willing to return, and that her
employer would take her with her restrictions, he did not consult with
plaintiff before permitting her to return to work. He also stated in the
letter,

I evaluated [plaintiff] only for the question as to
whether or not she had fibromyalgia. I am not involved
in her on-going care regarding her musculoskeletal
pain problem and do not feel that I am at liberty to
be issuing work restrictions, etc. I defer to Dr. Eric
Phillips who is seeing her on an on-going basis with
respect to this.

R. at 177 (emphasis in original).

On June 2, 1997, plaintiff returned to orthopedic surgeon Dr. Garner.
He injected her thumb area, apparently with an anti-inflammatory.
However, plaintiff developed an inflammation from the ...

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